I was first drawn to Collaborative Family Law out of a sense of frustration from the waste of time and energy involved in traditional family law litigation. I believe that the adversarial system is antithetical to the systemic needs of a family in transition. Collaboration is required to uncouple their legal partnership in concert with terms acceptable to two people who thought their lives were their own private business. At times of confusion and mistrust, the last thing a divorcing couple needs is to move their fight from the bedroom to the court room. Collaborative Family Law is a way to stop fighting and start problem solving, from the get go. I have long felt there was no need to put off the inevitable and add a layer of hurt and distrust. Those emotions are usually what the divorcing couple is feeling, however they are exactly what they want and need to get away from.
Typical Collaborative Family Law Cases
I use the Collaborative Family Law process to help settle pre- and post-decree family law disputes. This means resolution of conflicts arising before and during divorce as well as resolution of conflicts involving the children which may arise after a marriage has been dissolved. I also use the Collaborative Family Law process to help solve custody and support issues for parents who have never been married before they end up in Juvenile or Children’s Court.
Most, if not all, financial and mental health professionals who hold themselves out as Collaborative Family Law practitioners conduct their practices under the umbrella of local, regional or state practice groups. The Collaborative Practice groups are loosely organized assemblies of professionals who regularly meet and discuss “best practices” for Collaborative cases. Each case can call for a different grouping of trained professionals to meet the specific needs of a transitioning couple. Two lawyers are always required. Some practice groups have found success using mental health professionals as “divorce coaches” for each party. Other groups promote the use of a single mental health professional as a “family relations specialist” to fill the role of an independent neutral to deal with the ever present emotional issues at the negotiating table. If financial issues are impeding effective communications, a neutral financial specialist can also be involved in a Collaborative case. At their core, each Collaborative Process is the same. Every case requires Participation Agreement which contains a disqualification clause for the professional participants, and a full disclosure clause for all material information.
I explain to my clients, that the Collaborative Process will begin just as soon as the two clients (the parties), who have retained two Collaborative lawyers; sign a Participation Agreement or Collaboration Contract. This contract is separate and distinct from each person’s individual retainer contract with his/her lawyer. The Collaborative Contract identifies the two Collaborative lawyers; the coach or family relations specialist and/or the financial specialist, if needed. The contract goes on to say that all of the professional participants will be disqualified from ever being involved in litigation with the couple either as legal representatives, witnesses, therapists or financial advisers. This shield is what creates neutrality and makes the process “safe”. While it does not eliminate the need for advocacy, if a client cannot find his or her voice, it does limit the extent to which advocacy can effectively be put to use. There is no other “decider” in the room other than the two parties. The contract goes on to detail each party’s promise to the other, that the status quo will be maintained during the process and that all negotiations will be conducted with the utmost good faith. The terms of the agreement also emphasize that the process is completely voluntary and that if it is “not working” for either party, the process may be terminated and the dispute can be moved into litigation for resolution by a judge. A sample contract is included at the end of this article.